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Discrimination Based on Gender

Discrimination based on gender is discrimination based on sex: it is unlawful for an employer to treat an employee or a group of employees differently based on gender. A vivid example of such different treatment would be a failure to promote; a policy with a disparate effect based on gender (assignments that deprive certain gender of overtime and/or resulting in unequal pay); a practice that targets a group based on gender or imputed (assumed) gender…

How an employee can show that he/she was in fact discriminated based on gender?

For plaintiff's gender discrimination claims, plaintiff must only prove that her gender was a motivating factor behind the adverse action, Weinstock v. Columbia Univ., 224 F.3d 33, 58 (2d Cir. 2000). Even if there were other factors for the adverse employment action, if an employer took into consideration prohibited factor, an employer will be liable for it.

Often, victims of discrimination leave their jobs to avoid constant harassment and stress. Can they recover? What do they need to prove for a successful claim in court? A constructive discharge occurs when an "'employer, rather than discharging [the plaintiff] directly, intentionally creates a work atmosphere so intolerable that [the plaintiff] is forced to quit involuntarily.'" Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004) (quoting Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003)). The question of whether an "employer's deliberate actions rendered the employee's work conditions so intolerable as to compel resignation . . . is assessed objectively by reference to a reasonable person in the employee's position." Id. at 230. In addition, "plaintiff must show that the constructive discharge 'occurred in circumstances giving rise to an inference of discrimination on the basis of [her] membership" in a protected class.'" Cortez v. Connecticut Dep't of Transp., 606 F. Supp. 2d 246, 253 (D. Conn. 2009) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)); see also Mitchell-Miranda v. City of New York, No. 08-CV-4031, 2011 U.S. Dist. LEXIS 31130, 2011 WL 1210202, at *9 (S.D.N.Y. Mar. 24, 2011).

Such a demonstration not easy to present. For example, the courts recognized that yelling and criticism usually do not rise to the level of intolerable actions. ("[A]n employee is not constructively discharged because she does not like her assignments, receives unfair criticism, or is yelled at by supervisors.") (quoting Katz v. Beth Israel Med. Ctr., No. 95-CV-7183, 2001 U.S. Dist. LEXIS 29, 2001 WL 11064, at *14 (S.D.N.Y. Jan. 4, 2001)). However, each case is different and if an employee feels that she/he is being forced to leave the position, such an employee should consult with an attorney as soon as possible.

Lawyer Serving New York

New York workplace harassment Lawyer Alena Shautsova serves New York City, Manhattan, Queens, the Bronx and surrounding communities.